Progressive Utopian Vision Versus The Constitution Francis Menton
It’s already been a bad week in the Supreme Court for progressive shibboleths. Just today, the key provision of New York’s gun restriction regime — under which the authorities had discretion to deny you a gun permit if they thought the reason you gave for wanting one was not good enough — got struck down under the Second Amendment. For what it’s worth, I’ve long thought that that provision was obviously unconstitutional, and that the Second Circuit’s decision upholding it was not a good faith application of existing Supreme Court precedent. In practice, the authorities denied almost all requests for gun permits except from politicians, big political donors (to Democrats) and celebrities. The decision has caused a good deal of wailing and gnashing of teeth over in the precincts of the Left.
And there’s plenty more to come. Without doubt you are already familiar with the case involving Mississippi’s abortion law, likely to spell the end of the long reign of Roe v. Wade. But today I’m going to focus on another high-impact case, West Virginia v. EPA. This one was argued back in February, but the decision still has not been issued. They tend to issue the decisions in the most important cases at the very end. In the West Virginia case, there is significant potential that the Supreme Court could significantly rein in the regulatory assault that the Biden Administration is currently waging against the fossil fuel industries, and maybe some other regulatory assaults as well.
You can tell that there is concern over this one because the New York Times is not waiting around for the decision to start its parade of hit pieces. On Monday, the lead story, occupying about half of the front page, dealt with this case, with the headline “Republican Drive to Tilt Courts Against Climate Action Reaches a Crucial Moment.” The byline is Coral Davenport.
But first, some background on the case. The procedural history is complicated, which adds uncertainty to guessing what the Supreme Court might do. The history starts with a regulation adopted in 2015 by the Obama EPA, cynically called the “Clean Power Plan.” The basic idea was to have the EPA restrict the use of fossil fuels to generate electricity, starting with making it impossible to use coal for the purpose, and then later moving on to oil and natural gas. The supposed authority for the CPP was Section 7411 of the Clean Air Act. I’d like to be able to give you a pithy quote from Section 7411 so you could judge for yourself whether it has language that would arguably authorize the massive power grab of the CPP, but no such pithy quote exists, and the section in full is considerably longer than this blog post. So you’ll just have to go to the link and read it if you want to try to understand its significance.
From the beginning it was clear that the Trump EPA intended to rescind the CPP, and in 2019 they got around to doing it. They then put in place another regulation called the Affordable Clean Energy plan (ACE), which made some gestures toward “greenhouse gas” regulation, but did not attempt to transform the electricity-generation sector of the economy the way the CPP did.
A group of (Democratic) states went to the DC Circuit to challenge the Trump EPA’s rescission of the CPP and institution of the ACE. Meanwhile, another group of states (Republican) had already challenged the CPP in the same court. On January 19, 2021 (last day of the Trump Administration) the DC Circuit issued an opinion ruling in favor of the Democratic states (surprise!), and striking down the Trump EPA’s rescission of the CPP and institution of the ACE.
At that point everybody petitioned to the Supreme Court, which agreed to hear both the Republican states’ challenges to the CPP and the Democratic states’ challenges to the rescission of the CPP and institution of ACE. Meanwhile, the ACE has been struck down, but where was the CPP? The Biden Administration has not reinstituted it, and indeed by its own terms it is obsolete, since numerous deadlines have passed during the time it was in limbo. The Biden Administration says that they are working on something new, but it is not yet public.
In this procedural morass, the easy thing for the Supreme Court to do would be to basically say “come back to us when there’s something to challenge.” But there is substantial speculation — in part based on questions from the justices at the oral argument — that the Court has in mind using this case as a vehicle to make some broader ruling on what’s called the “major questions doctrine.”
The “major questions doctrine” says that a regulatory agency cannot embark upon a major transformation of the economy without a very specific direction from Congress to do so. That sounds promising, but in the real world the “major questions doctrine” has been infrequently applied, giving the regulatory agencies the idea that they can do whatever they want under old and ambiguous statutes when Congress won’t give them the authority they would like.
And now you can see what has got the New York Times worried. The Green New Deal is moribund in Congress, and after the midterms it will be finished, maybe forever. If the government is going to “save the planet” by suppressing fossil fuels, that can only be done via regulatory agencies claiming the authority to issue huge economy-transforming regulations under old statutes that had nothing to do with CO2 or other non-toxic “greenhouse gases” back when they were passed.
Or perhaps you would like to read the way Ms. Davenport of the Times spins the same set of facts:
Congress has barely addressed the issue of climate change. Instead, for decades it has delegated authority to the agencies because it lacks the expertise possessed by the specialists who write complicated rules and regulations and who can respond quickly to changing science, particularly when Capitol Hill is gridlocked. . . . Victory for the plaintiffs in these cases would mean the federal government could not dramatically restrict tailpipe emissions because of vehicles’ impact on climate, even though transportation is the country’s largest source of greenhouse gases. The government also would not be able to force electric utilities to replace fossil fuel-fired power plants, the second-largest source of planet warming pollution, with wind and solar power.
Funny that Congress always seems to have plenty of expertise to pass complex tax statutes. And note that those last two sentences are just flatly wrong. Nothing about victory for the plaintiffs on the “major questions” doctrine would restrict the ability of the federal government to restrict tailpipe emissions or to force utilities to replace fossil fuel power plants. It’s just that those actions would require explicit authorization from Congress. That authorization is not likely to be forthcoming any time soon, but only because the people have not voted for a Congress that will enact it. Ms. Davenport and the Times just think that the Constitutional structure should not get in the way of the federal bureaucracy implementing the progressive utopian vision on its own say so.
See also, the Federal Reserve adopting tackling climate change as one of its goals in monetary policy, and the SEC issuing some hundred or so pages of regulations on “climate” disclosures for corporate issuers.
Most of the rest of the lengthy Times article is about the nefarious scheming by Republicans and shadowy dark money organizations to take over the courts and otherwise thwart the virtuous march to progressive nirvana.
Meanwhile, if you are planning any sort of attack on Manhattan Contrarian headquarters here in New York City, be warned: I may very well be armed!
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